Friday, 10 May 2019

Law Reporting - in brief

Thanks to generations of "Law Reporters" we have an extensive heritage of law reports in which are recorded the details of cases, the legal arguments, the reasoning of the judges and their decisions on the law.  Case law, as found in the various law reports, is a source of law through the mechanism of the doctrine of precedent. According to this doctrine, a court is bound by the decisions of a court above it in the hierarchy and, usually, by a court of equivalent standing.  Superior courts have the power to overrule decisions of lower courts and in certain cases to depart from their own decisions.  The modern doctrine of the binding force of judicial precedent only fully emerged when there was good law reporting and a settled judicial hierarchy.

The Judicature Acts of 1873-1875 created a court hierarchy, which was completed when the House of Lords became the final Court of Appeal following the Appellate Jurisdiction Act 1876.  The appellate jurisdiction of the House of Lords ended in 2009 with the creation, by the Constitutional Reform Act 2005, of the Supreme Court of the United Kingdom

As well as binding precedent there is also persuasive precedent from a high court in another jurisdiction - e.g. decisions of senior courts in the British Commonwealth such as the High Court of Australia or the Supreme Court of Canada etc.

Historically, decisions of the Judicial Committee of the Privy Council were treated as persuasive precedent.  However, in Willers v Joyce No.2 [2016] UKSC 44 the Supreme Court dealt with  the circumstances in which the JCPC can decide that an earlier House of Lords or Supreme Court decision was wrong.  See this previous post and

Judgment - [2016] UKSC 44 (PDF) 

Press summary - [2016] UKSC 44 (PDF)

Law Reports date back to medieval times when the Year Books recorded the decisions of the King's Courts of the day.  The Year Books cover the period from the reign of Edward I (reigned 1272 to 1307) to Richard III (reigned 1483 to 1485) after which they became more intermittent and ended during the reign of Henry VIII (1509 to 1547).  The books are the precursors of the vast libraries of reports which accumulate wherever the common law is either studied or applied.  They are one of the few first hand accounts of the period.

The Year Books were followed by several centuries during which many sets of reports appeared.  The quality of reporting varies considerably.  The University of Leicester has this extensive list of law reports.

In 1865, the Incorporated Council of Law Reporting (ICLR) was founded, and it has gradually become the dominant publisher of reports in the UK.  It has compiled many pre-1866 cases into the English Reports.  Post-1865 cases are contained in the ICLR's own Law Reports.  Even today, the UK government does not publish an official report, but its courts have promulgated rules stating that the ICLR reports must be cited when available.   Historical practice, which may still apply where no other report is available, permitted parties to rely on any report 'with the name of a barrister annexed to it.'

The Supreme Court of the United Kingdom publishes its judgments together with a press summary explaining the judgment.  Judicial Committee of the Privy Council decisions are also published on the JCPC website.

The British and Irish Legal Information Institute (BAILII) is an excellent online resource for the key judgments of courts and tribunals in the UK.

Useful links:

ICLR - What is a law report

Oxford Lib Guides - Legal databases

University of Oxford - Faculty of Law - Law reports and precedent

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